Digital Commons Network^™

Antitrust And Tech Giants: Learning From United States V. Google Llc, Marcus D’Agostino

Fordham Journal of Corporate & Financial Law

This Note addresses the evolution of antitrust regulation and enforcement in the United States, with a focus on the recent case of United States v. Google LLC. That case is used to frame the broader problem of insufficient remedies being implemented against large technology firms. The mild remedies granted to the government in Google reinforce the findings of the 2020 Congressional Report on Digital Competition. The Report recommended changes to the antitrust laws that would revive structural separation as a remedy. This Note argues that the body of evidence presented compels structural separation to be used more frequently as the …

The Nlrb’S Authority To Make Workers Whole, Wanny Mei

Fordham Law Review

In December 2022, the National Labor Relations Board (NLRB or the “Board”) announced a modified make-whole remedial framework in Thryv, Inc.For all standard make-whole relief orders, the Board would order relief for direct or foreseeable pecuniary harms that employees suffer as a result of an unfair labor practice. Proponents of this remedial design assert that this is consistent with the Board’s authority under section 10(c) of the National Labor Relations Act (NLRA). On the other hand, opponents find that this design exceeds the Board’s statutory authority and conflicts with the Seventh Amendment right to a jury trial.

This Note …

Leveling The Playing Field: The Atlantic Coast Conference’S Settlement With Florida State University And Clemson University, Emma Lloyd Best, Kyre Dane Lahtinen

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article examines the legal disputes and subsequent settlement between the Atlantic Coast Conference and two of its prominent member institutions, Florida State University and Clemson University. The conflicts centered on the Atlantic Coast Conference’s extension of its media rights agreement with ESPN, which both universities argued were not properly approved under conference bylaws and imposed an unconscionable withdrawal penalty. Florida State University sought to challenge the enforceability of the Grant of Rights and its associated penalties, while Clemson University pursued a narrower interpretation, aiming to limit broadcast rights and financial obligations upon exit. The …

A Third Possibility: The Press Clause At The Founding, Matthew L. Schafer

Fordham Intellectual Property, Media and Entertainment Law Journal

With the rise of history and tradition at the Supreme Court, scholarship purporting to define historical fact is likely to have outsized influence on the development of constitutional law. Underdeveloped constitutional rights like the First Amendment’s Press Clause are especially susceptible to such influence as they lack a precedential counterweight. While Press Clause jurisprudence is shallow, historical research about the Press Clause is not. For decades, scholars who have considered the Press Clause’s historical meaning have generally concluded that the record is quite vague, and, for that reason, cautioned against absolutist conclusions as to its original understanding. …

Leveling The Playing Field: The Atlantic Coast Conference’S Settlement With Florida State University And Clemson University, Emma Lloyd Best, Kyre Dane Lahtinen

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article examines the legal disputes and subsequent settlement between the Atlantic Coast Conference and two of its prominent member institutions, Florida State University and Clemson University. The conflicts centered on the Atlantic Coast Conference’s extension of its media rights agreement with ESPN, which both universities argued were not properly approved under conference bylaws and imposed an unconscionable withdrawal penalty. Florida State University sought to challenge the enforceability of the Grant of Rights and its associated penalties, while Clemson University pursued a narrower interpretation, aiming to limit broadcast rights and financial obligations upon exit. The Article delves into the history …

A Third Possibility: The Press Clause At The Founding, Matthew L. Schafer

Fordham Intellectual Property, Media and Entertainment Law Journal

With the rise of history and tradition at the Supreme Court, scholarship purporting to define historical fact is likely to have outsized influence on the development of constitutional law. Underdeveloped constitutional rights like the First Amendment’s Press Clause are especially susceptible to such influence as they lack a precedential counterweight. While Press Clause jurisprudence is shallow, historical research about the Press Clause is not. For decades, scholars who have considered the Press Clause’s historical meaning have generally concluded that the record is quite vague, and, for that reason, cautioned against absolutist conclusions as to its original understanding. More recently, though, …

Deregulating The Song: The Case For Free- Market Licensing Of Musical Works In The Digital Streaming Era, Bailey Alberton

Fordham Intellectual Property, Media and Entertainment Law Journal

This Note takes as its starting point that songwriters are inadequately and unfairly compensated for the streaming of their music and argues that the unique and pervasive government regulation of musical composition licensing exacerbates this problem. To address this problem, this Note argues that both the compulsory mechanical license and the performing rights organizations consent decrees should undergo reform to permit songwriters to negotiate with music streaming services in the free market.

Due Diligence In Global Supply Chains: The Troubled Journey Of The Eu Legislation And The Global Perspective, Fabrizio Cafaggi, Federico Pistelli

Fordham International Law Journal

No abstract provided.

The Wto Is Dead, Long Live The Wto: The Lingering Interpretive Problem Of Article 27.1 Of The Trips Agreement, Faisal Chaudhry

Fordham International Law Journal

No abstract provided.

The Concept Of An Agreement In International Law, William Thomas Worster

Fordham International Law Journal

No abstract provided.

Why Are Executions Becoming Crueler?, Deborah W. Denno

Faculty Scholarship

Since the modern death penalty era, this country’s six execution methods have become crueler over time. This article details the execution procedures adopted across death penalty states up to the end of 2025, analyzing their societal and cultural underpinnings and explaining how they were implemented, including their shared flaws, unscientific origins and protocols, and reliance on untrained, unqualified, or unknown executioners. While legislatures and courts claim that states move from one technique to the next to enhance greater humaneness, history shows that such switches are primarily propelled by constitutional challenges to a state’s particular technique. In theory, rendering a state’s …

Should Statutory Interpretation And Contract Interpretation Be Harmonized?, Ethan J. Leib

Faculty Scholarship

This paper develops four case studies about how states have harmonized or separated their statutory interpretation regimes and their contract interpretation regimes.  After exploring the choices of Texas, Alaska, New York, and Alabama—all of which take different approaches to their lumping or splitting—the paper seeks to make state courts more aware of what their options are; to help states think about whether their commitments to formalism or contextualism make sense to apply in both domains; and to help them evaluate their meta-choices about whether to bring their interpretive regimes closer together or further apart.

The International Order, International Law, And The Definition Of Security, Harlan G. Cohen

Faculty Scholarship

As economic security has seemingly moved to the center of American and European foreign policy, both the United States and the European Union have broadened their interpretation of international law rules governing security, coercion, and intervention. But these interpretations are not exactly new, echoing developing state interpretations of international law that developed states had long ago seemingly rejected. How are these once moribund interpretations of security, force, and coercion being brought back to life?

This article argues that these interpretative shifts highlight the role of the international order as an interpretative mechanism within international law. Borrowing from the work of …

Does Textualism Constrain Supreme Court Justices?, James J. Brudney, Lawrence Baum

Faculty Scholarship

A principal justification for textualism is the constraint hypothesis. Conservative Justices and leading textualist scholars contend that—in stark contrast to reliance on legislative history—focus on the ordinary meaning of enacted text leaves little room for the Justices to be policy-oriented or ideological in their interpretations. This Article represents the first systematic study probing the validity of the constraint hypothesis, one that employs both quantitative and qualitative analysis.

The Article examines the Justices’ reliance on interpretive resources in over 660 statutory decisions in the field of labor and employment, decided by the Burger Court, the Rehnquist Court, and the Roberts Court—during …

Corporations’ First Amendment Rights And Algorithmic Cocoons, Sol Murgui Orsucci

Fordham Journal of Corporate & Financial Law

This Note examines how corporate First Amendment doctrine applies to algorithmic systems that curate commercial information and public discourse across online platforms. Courts have increasingly treated ranking, recommendation, and moderation practices as exercises of protected editorial judgment. At the same time, the Court has justified protection for corporate speech in part by reference to listener-centered interests in access to information and competitive comparison. This Note argues that the interaction between these doctrinal strands and contemporary algorithmic intermediation reveals a structural tension. Data-driven optimization can generate individualized informational environments—what this Note terms “algorithmic cocoons”—in which users encounter content, offers, and prices …

Bankruptcy As Presidential Resistance, Alvin Velazquez

Fordham Urban Law Journal Online

No abstract provided.

The Surveillance Of System-Adjacent Individuals, Mariam A. Hinds

Faculty Scholarship

Although the Fourth Amendment protects against “unreasonable searches and seizures,” this right is not enjoyed by all people equally. Supreme Court jurisprudence has curtailed the Fourth Amendment privacy rights of individuals under probation or parole supervision. In this line of cases, the Court concluded that the government’s interest in monitoring supervisees, reducing recidivism, and promoting public safety outweighed their reasonable expectation of privacy.

However, surveillance mechanisms like probation and parole extend the criminal legal system’s carceral gaze beyond the supervisees and peer into the bedrooms and digital lives of their families, roommates, and communities, or who this Article calls system-adjacent …

An Empirical Study Of Malingering In Insanity Cases Across Twelve Decades, Deborah W. Denno

Faculty Scholarship

The last 120 years have seen a surge in the use of neuroscientific evidence in American criminal law cases, fueled by discoveries in brain science that have challenged the legal system’s assumptions about human thinking and culpability. One key assumption is that many defendants “malinger,” that is, feign or fake insanity or mental illness, to garner an acquittal or mitigated punishment. Likewise, when potential evidence that a defendant is malingering is introduced in court, it can have a pronounced and powerful negative effect on the defendant’s insanity claim, especially when juries and criminal justice actors are already skeptical of insanity …

The One-Stop-Shop Is One Step In The Right Direction, Olivier Sylvain

Faculty Scholarship

In Brokering Safety, Sharma, Kadri, and Adler urge federal policymakers to impose on data brokers the greater duty of policing and stemming online stalking, harassment, and related abuse; that burden should not fall to victims, they argue. Their proposal would close the unevenness among state laws, shift the burden of oversight away from victims, and, importantly, ensure accountability at a systemic level, addressing gaps in enforcement that allow brokers to evade meaningful consequences. Yet, the one-stop-shop solution that Brokering Safety proposes also accedes to the core neoliberal presumption insofar as it individualizes harm. Online abuse, like dark patterns and …

Clean Hands, Dirty Money, And The Codification Of Sec Disgorgement, Stephanie Palma

Fordham Law Review

Disgorgement is the U.S. Securities and Exchange Commission’s (SEC) most powerful enforcement tool and among its most controversial. For decades, federal courts treated disgorgement in securities enforcement actions as an equitable remedy, a view that the U.S. Supreme Court confirmed in Liu v. SEC. Months after Liu, Congress passed the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, which codified disgorgement in SEC enforcement actions. The codification of disgorgement sparked a circuit split between the U.S. Courts of Appeals for the Fifth and Second Circuits over whether Congress created a new statutory form of …

Silencing As Blackening, I. Bennett Capers

Faculty Scholarship

We are so accustomed to seeing defendants sit silently at criminal trials while their lawyers speak that we hardly question it. Or we tell ourselves this silence is for their own protection, part of their privilege against self-incrimination and the rules we have created for their own benefit. But what if we've gotten everything wrong? What if encouraging defendants to remain silent does not inure to their benefit at all, but to the State's? And what if this silencing is tied to race? "Silencing as Blackening" tells a fuller story about silent defendants. One, that this silence is rarely voluntary, …

Caster V. Chelsea Hotel Owner, Llc

All Decisions

The Supreme Court granted the landlord's motion for summary judgment, dismissing the tenant's complaint. The tenant sued for breach of contract, seeking a leasehold in an adjacent unit, and for breach of the implied covenant of good faith and fair dealing. Both claims were dismissed due to the tenant's lack of evidentiary proof and the duplicative nature of the covenant claim. The tenant's harassment claim, based on alleged failure to repair and service disruptions, was barred by res judicata and collateral estoppel, as these issues were fully litigated as an affirmative defense in a prior non-payment action. The harassment claim …

2075 Creston Ave. Realty Llc V. Colon

All Decisions

In this nonpayment proceeding, the court granted the tenant's motion to amend their pro-se answer, finding the proposed defenses were not "palpably insufficient or devoid of merit." The court also granted limited discovery for the tenant's rent overcharge claim. The court rejected the landlord's argument that the claim was time-barred, applying *Matter of West Pierre Assoc. LLC v Harvey* because the tenancy commenced post-HSTPA. A single unexplained rent increase was deemed sufficient to render the rent history unreliable, justifying discovery to determine the legal rent.

Shoreview Holdings, Llc V. Fernandez

All Decisions

Landlord initiated a holdover proceeding, claiming exemption from GCEL as a "small landlord." Tenant moved to dismiss, arguing landlord's failure to comply with LLC law publication requirements, misdescription of premises, exceeding the "small landlord" unit count, and non-compliance of the predicate notice and petition with GCEL's ownership disclosure requirements. The court denied tenant's motion, ruling that late compliance with LLC law cures the defect, that premises description issues were amendable or triable, and that GCEL requires ownership disclosure in the petition (which can be amended) but not the predicate notice. The court granted landlord's motion to amend its affirmation and …

Zotpri Llc V. Burton

All Decisions

In this nonpayment proceeding, the tenant, after retaining counsel, moved to amend their pro se answer to assert affirmative defenses of payment, laches, and breach of the warranty of habitability, along with counterclaims. The landlord opposed, arguing untimeliness and insufficient pleading of laches. The court granted the tenant's motion, allowing the amended answer with the payment and warranty of habitability defenses and counterclaims. However, the laches defense was stricken for insufficient pleading, as it failed to demonstrate lack of notice or prejudice to the tenant, beyond mere delay, which are essential elements for an equitable laches claim.

Osibodu V. Fehintola

All Decisions

In this holdover-lease expiration proceeding, the tenant moved to reargue and renew a prior denied motion to dismiss, citing new facts. The tenant argued that the landlord's subsequent filing of a new holdover proceeding for the same unit, but with a contradictory description of the premises (basement unit vs. first floor unit), constituted an admission of the original petition's inadequacy. The court granted the tenant's motion, finding the new description contradicted the landlord's earlier representations and rendered the original premises description deficient under RPAPL § 741(3) for a marshal to execute a warrant with certainty. The proceeding was dismissed without …

155 Linden Llc V. Washington

All Decisions

In this nonpayment proceeding, the court granted the tenant's motion for leave to file an amended answer and for summary judgment. The landlord sought rent arrears for a Rent Stabilized apartment. The tenant argued that the landlord was barred from collecting rent due to open Department of Buildings (DOB) violations indicating occupancy contrary to the building's certificate of occupancy. Citing MDL §§ 301 and 302 and the controlling precedent of *Chazon, LLC v. Maugeneset*, the court found that the sixteen open DOB violations for unauthorized conversion of commercial space precluded the landlord from prosecuting the nonpayment action, regardless of whether …

Jupiter 7 6 Llc V. Quinn

All Decisions

In this Good Cause Eviction Law (GCEL) holdover proceeding based on the tenant's alleged nonpayment of rent, the court denied the tenant's pre-answer motion to dismiss the petition. The tenant argued that the predicate 90-day notice of termination lacked specific details regarding the alleged rent arrears. The court ruled that the predicate notice is sufficient if it generally apprises the tenant of the issues, deeming specific arrears information unnecessary at the earliest stage of the proceeding, thus disagreeing with other courts that require such detail. The court further elaborated on a three-step procedure for a tenant to cure nonpayment in …

Hellmuth Owners Corp. V. Kaplan

All Decisions

In this nonpayment proceeding for a co-op, the landlord moved to dismiss tenant's counterclaims and affirmative defenses, and the tenant cross-moved for discovery. The court largely granted the landlord's motion, severing many counterclaims (including monetary damages, injunctive, and declaratory relief) without prejudice due to Housing Court's limited subject matter jurisdiction. Several affirmative defenses were also dismissed without prejudice for being insufficiently pleaded or devoid of merit. However, the tenant's constructive eviction counterclaim was allowed to proceed. The tenant's motion for discovery was denied as overly broad.

155 Linden Llc V. Washington

All Decisions

In this nonpayment proceeding, the tenant moved for leave to amend their answer and for summary judgment on affirmative defenses under Multiple Dwelling Law (MDL) §§ 301 and 302. The court granted leave to amend and then granted summary judgment to the tenant. It was undisputed that the building had sixteen open Department of Building (DOB) violations and partial vacate orders for unauthorized conversion of commercial space into apartments, which contravened the certificate of occupancy. Citing *Chazon, LLC v. Maugeneset*, the court held that these violations precluded the landlord from collecting rent, regardless of whether the tenant's specific unit was …